When veteran Matthew Rossignol was undergoing annual examinations at his local veterans hospital, he had no idea that the physician negligently prescribed medication to him that would eventually lead to kidney failure and the need for a kidney transplant. Rossignol’s chronic condition took years to develop. However, his lawsuit against the United States quickly settled in the amount of $10.5 million. Most importantly, his lawyers from the law firm Whitehurst, Harkness, Brees, Cheng, Alsaffer, Higginbotham & Jacob, P.L.L.C. (also known as National Trial Law) were able to secure the settlement amount in a reversionary annuity account, providing Rossignol much more flexibility and money to put toward his care.
The Lawsuit’s Allegations
From 2015 to 2019, Rossignol underwent annual physical examinations at the Harry S. Truman Memorial Veterans Hospital located in Missouri. Beginning in May 2015, at the age of 35, Rossignol was prescribed a 90-day supply of Naproxen. Also known as an NSAID, Naproxen is a nonsteroidal anti-inflammatory drug. Per the lawsuit’s allegations, Naproxen is associated with acute renal failure. Patients should not take Naproxen for any prolonged period of time, especially without a physician monitoring the patient’s kidney function. However, Truman Memorial continued to prescribe Rossignol the medication each year, giving him a 30-day supply in July 2017 that was refillable 11 times until August 2018, and another 30-day supply in August 2018 refillable for another 11 times. As a result, Rossignol took Naproxen for two years.
By 2017, Rossignol’s blood urea nitrogen (BUN) values, which is a kidney functioning indicator, were abnormally high. His BUN values continued to rise from 2017 to 2018. As the lawsuit alleged, Rossignol presented with many objective symptoms of kidney damage at each of his subsequent annual exams following his first NSAID prescription. However, as the lawsuit claims, the hospital failed to notice until he was in end-stage kidney failure. At this point, it was too late to refer him to a specialist such as a urologist or a nephrologist.
In January 2019, Rossignol went to the emergency room of General Leonard Wood Army Community Hospital. The hospital then admitted him to the intensive care unit. A physician diagnosed him with upper gastrointestinal bleeding, severe symptomatic anemia, and acute renal failure. Additionally, there were significant lab abnormalities. Rossignol received a diagnosis of end-stage renal disease, which required renal replacement therapy.
Negligent Prescribing
The lawsuit alleged that NSAIDs are not intended to be prescribed for two consecutive years and that the hospital negligently prescribed him the medication. Despite the patient’s rise in BUN values, the hospital continued prescribing the medication, which further compounded the negligence. The lawsuit also alleged that the hospital failed to properly diagnose Rossignol’s kidney disease and that earlier treatment would have prevented end-stage renal disease and the need for a transplant.
The lawsuit, Rossignol v. United States, 21-CV-04235, was filed in the United States District Court of the Western District of Missouri and was brought under the Federal Torts Claim Act, with Veteran Affairs acting as an agent of the United States.
The Litigation & Settlement
After the plaintiff filed the complaint in December 2021, the parties reached a settlement relatively quickly. Although, it was not without plenty of negotiation. The parties engaged in mediation in October 2022, and they reached a settlement agreement. However, the Department of Justice wanted to renege on the agreement and place the offered funds in a reversionary trust account. Plaintiff’s counsel, Laurie Higginbotham, fought against this trust, as it is a restrictive type of account wherein plaintiffs can only use the funds for medical bills. Instead, counsel argued for an annuity, which would give Rossignol flexibility in his spending and usage of the funds. In turn, the annuity could make a difference in millions of dollars worth of care. The Department of Justice eventually agreed and the parties settled for $10.5 million to be placed in an annuity.
How the Experts Helped
The plaintiff and his counsel retained a number of experts to assist in the case. They utilized Rossignol’s family practice doctor for case preparation, as they were the treating physician who had provided Rossignol’s care. The plaintiff also used a nephrologist (which is a physician who specializes in conditions that affect the kidneys) to establish the standard of care for this particular specialty. Additionally, they also used the nephrologist to determine how the VA physicians deviated from that standard. The plaintiff and his counsel also tasked the nephrologist with determining how the VA’s failure to diagnose and treat Rossignol’s condition proximately caused his kidney failure.
In order to assess Rossignol’s damages, particularly future costs associated with his care, the plaintiff’s attorney utilized the expertise of a life care planner, as well as an economist. Life care planners are able to calculate the services (and specific costs) of those living with chronic health conditions.
Key Takeaways
Medical care reversionary trusts are the typical method of payment in settlements paid by the federal government in Federal Torts Claims Act cases. These trusts have their downsides for the plaintiff, as medical bills are paid directly from the trust. Furthermore, upon the death of the plaintiff, the assets remaining in the trust revert back to the federal government. Typically, these types of trusts are a condition of settlement. Rossignol’s attorney did not just negotiate a more beneficial settlement for him. She also set a helpful precedent for future cases that are brought under the Federal Torts Claims Act.
